Employer in a controlled group sponsors a 401(k) plan. The (k) plan is the only plan in the controlled group and the employer is the only participating er. The only contributions being made to the plan for the testing year are (k) before tax deferrals.

The plan fails the ratio test under 410(b). So we move on to the nondiscrim. classification test / average benefit test. The plan satisfies the nondiscrim. classification safe harbor but we are having trouble determining the average benefit percentage for each EE.

1.410(b)-5(d)(2) says only employer provided contributions are taken into account in determining the avg. ben. % and "employee contribution" are not taken into account. What is an "employee contribution" for purposes of this section ?

If employee contributions include (k) deferrals, it seems to me the plan satisfies the avg. benefits test because all ee's would have a 0 avg. benefit %, and 70% of 0 is 0. If "employee contributions" has the traditional definition of after-tax deferrals we have a problem.

Any help is appreciated and sorry for long post, but the facts always help.

Can anyone share, from a practical standpoint, how they handle COBRA continuation coverage in connection with an EAP? For example, do you send a former employee a notice and require the employee to elect coverage under the EAP? If the former employee wants to be covered under the EAP, do you collect the premium amount from the employee? Because of the manner in which most employers pay for their employees to receive the benefits from an EAP, I'm not sure how practical it is to collect premiums from former employees who want to be covered. I appreciate anyone's thoughts!

I've always understood that a restricted HCE in an under funded DB plan could obtain/post a bond to cover his benefit in the event of a "pre-mature" plan termination so the plan would have recourse (presumably against the bonding company) if under funded at plan term date. Is this a realistic avenue ? Does anyone know of any insurance coverage that would offer such a specialized bond. I've seen some type of IRA-escrow account used in a situation like this, and also a segregated account (within the same plan), but have never pursued the bond option until now. Any thoughts or opinions are appreciated.

A client of ours is telling us that loan payments made through payroll deduction are made "pretax" just like a 401k deferral. The client has said that she "researched" the issue and we are asking for her research but I wanted to know if anyone else has heard of this.

We have a client that is a cooperative (a citrus grower's association) that sponsors a Profit Sharing Plan. One of the officers of the cooperative is 701/2 this year. The member farms are the owners of the cooperative so there is no ownership by any individuals. This officer also happens to have ownership in one of the member farms. Is he required to take an RMD from the Plan? Is it dependent on whether or not he owns more than 5% of the cooperative as a member?

Treasury Reg 1.72(p)-1 state that a loan agreement does not need to be signed if the agreement is enforceable under applicable law w/o being signed. If a loan from a 401(k) account is disbursed, does the employee's signature on the loan check constitute a legally enforceable agreement in CA?

I am beginning to study for the DC-2 exam. I have a copy of the 2004 Study Guide and have a question about the Practical Example of Concepts Learned in Chapter 2. Particularly, page 40 - Nonelective component, number 2 "Number of Employees who do not satisfy age/service as of 1/1/03 or 7/1/03". I think the employees would be HCE4, NHCE4, NHCE5 and NHCE6. The example does not include one of these NHC. What am I missing??

Any assistance would be helpful. Thanks!

Bonus plan calls for distribution of cash value of bonus by December 31 of each year, however company CEO reserves the right to defer bonus for up to 3 years. Forfeiture during that time occurs if employee leaves employment or violates confidentiality and non-solicitation clauses of employment agreement.

If deferrals is wholly within CEO's discretion, is employee still required to enter into a deferral election with respect to the bonus?

The Women's Health and Cancer Rights Act requirements include benefits for all stages of reconstruction of the breast on which a mastectomy has been performed and sugery and reconstruction of the other breast to produce a symmetrical appearance. My question is, once symmetry of the breasts is achieved, does a plan have to cover additional surgery if the member wants to change breast size?

Sole Proprietor uses SSN for Schedule C. Do we need a new EIN for the 401(k) Plan? Thank you.

If real estate is purchased inside an IRA and there is a mortgage on the property can the mortgage payment come from outside of the IRA or must the payment come from the IRA?

A plan sponsor provides it's employees the option of deferring a percentage of compensation or an actual dollar amount. The employer pays the employee bonuses, vacation pay, etc. on seperate checks outside of the normal pay period schedule. For the employees that chose a percentage of pay deferral the employer does deduct the percentage on every check generated regardless of the pay period schedule. For the employees that chose a dollar amount deferral the employer is only taking the dollar deduction on normal pay period compensation and is ignoring the additional checks that include additional pay(bonus, vacation, etc.). Is the employer required to take the dollar amount deferral on all compensation/checks regardless of whether it falls outside the normal pay period?

If a governmental pension plan pays certain medical bills for disability retirees, would the payment of such medical bills subject the pension plan to the HIPAA privacy requirements? Any thoughts/discussion would be much appreciated.

We have a situation where a self-insured health plan would like to give employees who are participants in the health plan and who do not smoke a certain amount of money per year. They will not use the money to reduce health insurance premiums, they want to just give it to the participants on their paychecks? Has anybody done this? How would we handle COBRA continuees? Any insight or guidance would be appreciated.

Forgive me if this is a "basic" question - but would FAS 106 apply to retiree health benefits provided through insurance? I ask b/c my employer wants to institute a retiree health plan - basically to cover one of the owners who is considering retirement (kids are taking over) with appropriate Firestone language (I think that is the case where you put the language indicating that the benefits may be amended/modified at anytime, etc.) and provide it to all employees, etc.

I would appreciate any help you are able to send my way! Thanks!

I have a small employer group in Oklahoma who is putting a cafeteria plan into place for a short plan year from 07/01/2004 through 12/31/2004. After that, they will be going on to a regular calendar year (January through December) to match the rest of their benefits. They will be set up with POP/FSA/DCAP plans.

Here is the problem: The employer has an employee who wants to contribute money into the plan so he can reimburse himself for qualified medical expenses he incurred earlier this calendar year 2004 (PRIOR to the 07/01/2004 effective date of the plan).

My thought is that he can only be reimbursed for expenses incurred AFTER 07/01/2004. The owner of the company maintains that his CPA has said that the employee CAN do this since the expense falls into the same 2004 tax year.

As always, I appreciate your opinions (and cited sources are always very helpful).

I have a client that wants to know more about communicating with clients regarding deferral levels. Can any recommend an article regarding tips on these communications? What is going too far? I'm curious to hear all of your thoughts as well, but I would like to send the client an article.

They are closing on passing ADP tests, so she really wants the NHCE's to contribute.

Plan is changing carriers and there will be a market value adjustment assessed against the "fixed" fund. The employer wants to pay the adjustment (small amount) to make participants in that fund whole. Seems fairly clear that this would be a contribution vs. a restorative payment.

What would seem fair, equitable and acceptable would be to make the payment only for participants in the fixed fund in the amount their account was reduced.

But if the amount being restored is considered a contribution, doesn't the allocation of that amount have to follow the terms of the plan re- allocating employer contributions (e.g. comp/comp)? If so, some participants who weren't in that fund could be getting an allocation.

I have looked at RR 2002-45 and the PLRs and they seem to deal with what is/isn't a restorative payment but haven't seen anything that deals with the payment as a contribution and how it would be allocated.

How have others done this?

An employee submitted a claim that included mileage reimbursement for his doctor's visits. Not sure if this is an acceptable expense & what can of substantiation would be required. How is it determined if this expense is essential to medical care? Any advice or info would be great!

Thanks

Participant with ESOP, 401(k), and IRS accounts. Deceased former spouse is named as the beneficary with children as contingent beneficiaries. 3 years ago the participant remarried a non-resident alien. The participant hinks that the children are protected as beneficaries as the former spouse is not eligible for the distribution the benefits of each go to the contingent beneficiaries.

I think the participant needs to get the spouse to sign a consent form for the children to be named beneficaires. Please advise.